When going through a divorce or separation you may have decided that you want a particular divorce lawyer to act on your behalf. There are however, some reasons why a divorce lawyer may not be able to represent you.
This comes down to the concept of ‘conflict’. A ‘conflict’ covers situations where it is inappropriate for a solicitor to advise a client because of previous or ongoing work with another person involved in the same case.
The most obvious conflict of interest in the divorce setting would be when one lawyer agreed to represent both parties. This is generally always prohibited and any ethical lawyer would refuse to represent both clients. However, conflicts of interest can also arise in more subtle ways during a divorce.
Because a lawyer has a very strong duty of loyalty and confidentiality to their clients, if they consults with a potential client during the divorce proceedings, it would be deemed a conflict of interest for them to later decide to represent the other spouse even if the first spouse decided not to hire them after the consultation. This is because sensitive information will often arise during the consultation that could be used against the spouse.
A conflict of interest can also arise if the lawyer has represented both of the spouses at one point during the marriage, and then when they separate one spouse wants to keep using the lawyer to carry out the divorce proceedings. This is because of the information about the opposing party that may be known that could be used in the divorce negotiations.
Lawyers are not allowed to represent you if they are your friend or have been associated with you as a couple during your marriage, or if they are a family member due to these conflict issues.
Divorce lawyers carry out a conflict check when first meeting a new client by checking to see if they or their firm has acted on behalf of a client that is related to you in this way.
Sometimes however the conflict is not immediately obvious and it may be further down the proceedings of the divorce process that some details come to light or more information is gathered that makes it apparent that it would be unwise to carry on with the discussions. This can occur when people have used false names or haven’t given full details of all the people involved in the divorce and it is later disclosed that this may present problems.
When there is a conflict of interest found, any judgment of a divorce proceeding may be overturned and you may find yourself back to square one.
There is much talk in the media of ‘conflicting out’. This is where, for example, one partner arranges to have initial consultations with a number/all of the specialist family lawyers in an area whilst trying to find which will suit them and their divorce needs best. Because of the nature of the information disclosed in these meetings, it then makes it very difficult for the other partner to instruct a lawyer to represent them because there may be a conflict of interest. This is seen to happen in the celebrity world of divorce, but is becoming more prevalent.
This highlights the importance of finding a suitable lawyer for you as soon as you decide that divorce will be your route forward.